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UNITED STATES v. DELANOY

October 17, 1994

UNITED STATES OF AMERICA
v.
DENNIS DELANOY and MICHAEL T. LARSON, Defendants.


McAvoy


The opinion of the court was delivered by: THOMAS J. MCAVOY

Defendants Delanoy and Larson were indicted on thirty-four (34) counts of mail fraud, wire fraud, and conspiracy to commit both mail and wire fraud. A trial in this case commenced on May 3, 1994 and a jury convicted the defendants of all counts on May 19, 1994. On September 23, 1994, the court sentenced defendant Delanoy to thirty (30) months and sentenced defendant Larson to twelve (12) months and one day in prison. On September 23, 1994 and September 26, 1994, defendants Larson and Delanoy respectively filed Notices of Appeal from the judgment against them. Defendants now move pursuant to Fed.R.App.P. 9 for an order releasing them pending appeal.

 The decision to release an individual pending appeal must be made according to 18 U.S.C. § 3143 and the defendant must establish that: (1) he will not flee or pose a danger to any other person or to the community; and (2) the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in a reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence of a term of imprisonment less than the total time already served plus the expected duration of the appeal process. Fed.R.App.P. 9(c); 18 U.S.C. § 3143(b)(1)(B).

 The defendants here argue that bail pending appeal is proper because: (1) the appeal is not made for the purposes of delay; (2) the appeal raises substantial questions of law and fact likely to result in a reversal or an order for a new trial; (3) they are not likely to flee; and (4) they do not pose a danger to the community or to any individual. The government concurs with defendants on factors one, three and four. However, the government does argue that defendants have failed to show by clear and convincing evidence that their appeal raises a substantial question of law or fact likely to result in a reversal or an order for a new trial.

 1. Clear and Convincing Evidence Standard

 First, the court disagrees with the government's interpretation of 18 U.S.C. § 3143(b)(1) that the defendants must prove all required factors by clear and convincing evidence. This section states in pertinent part that:

 
the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . . be detained, unless the judicial officer finds --
 
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released . . . . and
 
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in --
 
(i) reversal,
 
(ii) an order for a new trial,
 
(iii) a sentence that does not include a term of imprisonment, or
 
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected ...

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